Bharatiya Vidya Bhavan vs State Of Kerala
2021 Latest Caselaw 22327 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
     TUESDAY, THE 9TH DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943
                         WP(C) NO. 24539 OF 2021
PETITIONER:

              BHARATIYA VIDYA BHAVAN,
              KOCHI KENDRA, T.D. ROAD, ERNAKULAM, PIN 682 011,
              REPRESENTED BY IT DIRECTOR.
              BY ADVS.
              LATHA ANAND
              M.N.RADHAKRISHNA MENON
              K.R.PRAMOTH KUMAR
              S.VISHNU (ARIKKATTIL)
              RADHAKRISHNA PILLAI B
              SIDHARTH P.S.
              ROHITH MOHAN
              ARJUN VARMA
RESPONDENTS:

     1        STATE OF KERALA,
              REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,
              GOVERNMENT OF KERALA, SECRETARIAT, T
              HIRUVANANTHAPURAM-695 001
     2        SECRETARY TO GOVERNMENT,
              LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT OF KERALA,
              SECRETARIAT, THIRUVANANTHAPURAM-695 001
     3        THRIPUNITHURA MUNICIPALITY,
              MUNICIPAL OFFICE, THRIPUNITHURA, PIN-682 301,
              REPRESENTED BY ITS SECRETARY.
              SRI.APPU.P.S., GP
              SRI.C.V.MANUVILSAN, SC


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 24539 OF 2021

                                         2




                                  JUDGMENT

This writ petition is filed seeking the following prayer:

"(i) issue an appropriate writ/order/direction to the 3 rd respondent to consider Ext.P5 application filed by the petitioner for regularization of additional construction and direct to regularize the constructions"

2. Heard the learned senior counsel appearing for the petitioner, the

learned Government Pleader as well as the learned standing counsel

appearing for the 3rd respondent.

3. It is submitted by the learned counsel for the petitioner that the

petitioner is the owner in possession of 2.4011 Hectares of land in Survey

Nos.525/1, 528/3, 528/2, 528/4, 547/1, 525/2, 527/1 and 527/2 of Nadama

Village, Kanayannur Taluk in Ernakulam District. It is submitted that a

school affiliated to the CBSE is functioning in the property. It is submitted

that the petitioner had obtained building permit for the construction of the

school building as early as in June, 1989 and that the entire building had

been completed by the year 1997. It is submitted that with regard to the WP(C) NO. 24539 OF 2021

ground floor of the building, permissions had been issued and the building

had been numbered by the 3rd respondent. However, when fitness certificate

was sought for in respect of the current year, Ext.P4 reply was issued stating

that some of the buildings are not seen numbered. It is submitted that Ext.P5

application was thereafter submitted for regularization and numbering of all

the buildings, but the same is not considered on the ground that a portion of

the property is shown as 'nilam' in the basic tax register. It is submitted that

since the conversions had evidently been effected long prior to the coming

into force of the Kerala Conservation of Paddy Land and Wet Land Act,

2008 and since the building constructed in the property was in existence in

1989 and since the entire construction had been completed before 1997, the

buildings are liable to be numbered without insisting on procedure provided

in Section 27A of the 2008 Act. The decisions of this Court in Cheranelloor

Grama Panchayat v. Joe Thattil reported in [2020 (5) KLT 763] and in

Global Education Trust v. State of Kerala [2020 (6) KLT 738] are relied

on by the learned senior counsel appearing for the petitioner. The learned

senior counsel for the petitioner submits that in view of the fact that the WP(C) NO. 24539 OF 2021

constructions had been completed long prior to the amendment effected to

the 2008 Act with effect from 30.12.2017, there is no requirement for an

application under Section 27A of the Kerala Conservation of Paddy Land

and Wet Land Act, 2008 and that the only requirement is for a regularization

and numbering of the buildings already constructed, which, according to the

petitioner, had been completed before 1997. It is submitted by the learned

senior counsel for the petitioner that Ext.P5 application for regularization

may be directed to be considered without insisting on orders under Section

27A of the 2008 Act.

4. Having heard the learned Government Pleader as well as the learned

counsel for the respondents, I notice that the documents produced would

show that some of the buildings were in existence in 1989 itself. Admittedly,

all the constructions had been effected prior to the amendment to Act 28 of

2008 with effect from 30.12.2017.

5. In the above view of the matter and in view of the decisions relied on

and the contention that the constructions were on the basis of valid building

permits, I am of the opinion that Ext.P5 application submitted by the WP(C) NO. 24539 OF 2021

petitioner is liable to be considered, in accordance with law, without insisting

on obtaining of an order under Section 27A of the 2008 Act. There will,

accordingly, be a direction to the 3rd respondent to take up, consider and pass

orders on Ext.P5 application submitted by the petitioner after considering all

relevant aspects of the matter within a period of one month from the date of

receipt of a copy of this judgment. The petitioner shall produce a copy of the

writ petition along with a copy of this judgment before the 3 rd respondent for

compliance.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE NP WP(C) NO. 24539 OF 2021

APPENDIX OF WP(C) 24539/2021

PETITIONER'S EXHIBITS

Exhibit P1 TRUE COPY OF THE RELEVANT CERTIFICATE OF REGISTRATION WITH NO. F-358(BOM) DATED 12.06.1953.

Exhibit P2 TRUE COPY OF THE APPROVAL OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM, DATED 16.06.1989. Exhibit P3 TRUE COPY OF THE BUILDING PERMIT DATED 30.06.1989 ISSUED BY THE 3RD RESPONDENT MUNICIPALITY.

Exhibit P4 TRUE COPY OF THE NOTICE DATED 19.11.2019 OF THE ASSISTANT EXECUTIVE ENGINEER OF THE 3RD RESPONDENT.

Exhibit P5                 TRUE COPY OF THE APPLICATION FOR
                           REGULARISATION DATED 18.03.2021.
Exhibit P6                 TRUE COPY OF THE RECEIPT DATED 30.03.2021

ISSUED BY THE 3RD RESPONDENT FOR ACCEPTING THE APPLICATION.

Exhibit P7 TRUE COPY OF THE RECEIPT DATED 30.03.2021 ISSUED BY THE 3RD RESPONDENT FOR ACCEPTING THE APPLICATION FEE.

Exhibit P8 TRUE COPY OF THE DECISION IN CHERANELLOOR GRAMA PANCHAYATH V, JOE THATTIL, REPORTED IN 2020 (5) KLT 763.

Exhibit P9 TRUE COPY OF THE JUDGMENT DATED 10.11.2020 IN W.P.C NO. 34791/2019 Exhibit P10 TRUE COPY OF THE JUDGMENT DATED 05.03.2021 IN W.P.C 5218/2021

RESPONDENTS' EXHIBITS: NIL